Report: Kennedy Visibly Angry Over Decision
As legal scholars study the Supreme Court's decision in the Obamacare case, more and more are concluding that Justice Anthony Kennedy's dissenting opinion, striking down the law in its entirety, was once the majority opinion--and that Chief Justice John Roberts switched his vote at a late stage. If so, it would appear that the Chief Justice may have succumbed to the bullying meted out by President Barack Obama, who attacked the Court in the aftermath of oral arguments in March, when Obamacare seemed headed for certain defeat.
As National Review's Ed Whelan, the Volokh Conspiracy's David Bernstein, and others are pointing out, the dissent refers to another opinion as "the dissent" and uses the pronoun "we," as if speaking for the Court, as majority opinions typically do. In addition, the dissent focuses on the government's arguments, rather than tackling the majority head-on. That suggests that a switch--most likely by the Chief Justice himself--may have come very late in the game, too late to offer more than the most cursory revisions of the opinions in the case.
The fact that the Chief Justice's reasoning is so flimsy is yet another piece of evidence that he may have made a late switch--and under pressure. Congress did not intend the individual mandate to be a tax--neither in the text of the legislation, nor in its public deliberations inside and outside the Capitol. (If it had chosen to go that route, the left might have put forward a far stronger argument for universal government-run health care.) It is correct that Chief Justice Roberts has tended to defer to Congress, as conservatives do--but while this opinion has the form of deference, in substance it is the opposite of deferential, rewriting Obamacare by judicial fiat.
One final point is worth noting:
This has run a very close second in my thoughts. But, the restriction of the Commerce Clause and the strengthening of the 10th Amendment does not seem something the liberal opinion would have constructed or embraced, ruling out a quick switcheroo. It had to be thought out longer than that. Now, perhaps, the switch was made at the last minute, but not the mechanisms that would produce those outcomes.
ReplyDeleteFor all I know Roberts and the liberals were in on this from the get-go keeping the others in the dark up until the last minute for whatever reason/s. Kennedy would not have been visibly angry if he had known all along.
ReplyDeleteBrock, Roberts has been a consistent conservative. Given the very conservative tenor of the majority opinion in several key respects, there's no reason to suggest that Roberts was in cahoots with Ginsburg, Breyer, Sotomayor and Kagan from the beginning. The rest of the opinion looks clearly like he's still a conservative.
ReplyDeleteT.L., I think the reason Ginsburg et al embraced the restriction of the Commerce Clause is because they didn't have a majority without Roberts. And he, being a conservative, absolutely refused to uphold the law by presiding over the final gutting of the Commerce Clause. So they had to uphold on his terms or not uphold.
Also, T.L., if this theory is correct, there *was* no "all along." This was a last minute switch on Roberts's part. So of course Kennedy would be upset. I think Roberts agonized and vacillated over this decision, and finally gave in to the President's not-very-veiled threats. He (Roberts) gambled that upholding the law would galvanize conservatives and independents to work to throw the bums out in November. He says as much at the end of his opinion. And so far (with Romney having raked in $4.6 million since the decision was announced) his gamble seems to be paying off.
The very conservative tenor of most of the majority opinion is critical to understanding what happened, and something most conservatives seem to be ignoring so far. More info here:
http://crybelovedcountry.com/2012/06/roberts-and-obamacare-what-just-happened/
I'm not convinced, sweetie.
ReplyDeletehttp://freenorthcarolina.blogspot.com/2012/06/doesnt-appear-anything-good-will-come.html